Sixth Circuit Cases

6th Cir. Published Decisions for week of Dec. 24, 2007 (No Ky Cases)

Opinion	Short Title/District
07a0500p.06 2007/12/26	USA v. Smith     Western District of Michigan at Grand Rapids JULIA SMITH GIBBONS, Circuit Judge. On November 8, 2006, a jury found defendantappellant Lakento Brian Smith guilty of a number of drug-trafficking and firearm-possession charges. At a suppression hearing held prior to Smith’s jury trial, the district court denied Smith’s motion to suppress evidence seized from his residence during the execution of a search warrant, as well as evidence seized from his vehicle during a warrantless search. On appeal, Smith contends that the district court erred in admitting this evidence. For the reasons set forth below, we affirm the judgment of the district court.
07a0501p.06 2007/12/26	USA v. Maken     Southern District of Ohio at Dayton JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Walter M. Maken appeals his sentence for income tax evasion and willfully failing to file a federal income tax return. Maken contends that the district court erred in considering state tax losses in its calculation of his sentence and that the sentence imposed by the district court violated the Sixth Amendment. For the following reasons, we affirm the judgment of the district court.
07a0502p.06 2007/12/28	Simcox v. Simcox     Northern District of Ohio at Cleveland BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
07a0503p.06 2007/12/28	Ceraj v. Mukasey     Immigration & Naturalization Service RONALD LEE GILMAN, Circuit Judge. Seferin Ceraj and his wife, Irini Deda-Ceraj, both natives and citizens of Albania, entered the United States using fraudulent documents in March of 1997. In August of 1997, Ceraj filed an application for asylum, withholding of removal, and protection under the United Nation’s Convention Against Torture (CAT). Deda-Ceraj filed an application that was entirely derivative of her husband’s. Notices to Appear, charging them with being subject to removal, were issued in February of 2001. Following a merits hearing in March of 2005, an Immigration Judge (IJ) denied the petitioners’ request for relief and ordered them removed. The IJ found that Ceraj (1) filed a frivolous asylum application, (2) did not testify credibly, and (3) failed to establish either past persecution or a well-founded fear of future persecution in Albania. The Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision in a per curiam order. Ceraj and his wife timely petitioned for review. For the reasons set forth below, we DENY their petition.

6th. Cir. Published Decisions for Week of Dec. 17, 2007 (2 Ky decisions)

Opinion	Pub Date	Short Title/District
07a0486p.06	2007/12/17	USA v. Rutherford     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. In this case, Wayne County appeals the district court’s denial of its petition for the release of materials used in a grand jury indictment. We conclude that FED. R. CRIM. P. 6(e)(3)(E)(i), pertaining to the disclosure of grand jury documents, cannot be used to mandate such release. As a result, we AFFIRM the district court’s decision, although on different grounds than those stated by the district court.
07a0487p.06	2007/12/17	USA v. Carter     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Defendant Vernon T. Carter appeals his sentence of 15 months’ imprisonment for filing false income tax returns. At the sentencing hearing, the district court denied Carter’s motion for a downward departure/variance and enhanced Carter’s sentence by two levels for obstruction of justice. Carter raises three arguments on appeal: (1) the district court erred when it denied his motion for a downward departure and/or variance based upon “exceptional family circumstances”; (2) the district court failed to consider adequately a sentence of probation and home detention based on the sentence given to Carter’s niece for similar conduct; and (3) the district court erred when it enhanced his sentence by two levels for obstruction of justice. Because the district court did not err in applying the obstruction enhancement, and because it imposed a reasonable sentence, we affirm.
07a0488p.06	2007/12/17	USA v. Smith     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Carlton Victor Smith was convicted of bank robbery and sentenced to 405 months in prison following his participation in a scheme that was perpetrated by taking the family of a bank manager hostage and threatening to blow up the bank manager’s husband with a bomb unless the bank manager retrieved money from a bank vault. This court upheld Smith’s conviction and sentence in 2004, but the Supreme Court vacated his sentence in light of United States v. Booker, 543 U.S. 220 (2005). On remand, the district court sentenced him to 396 months in prison. Smith claims that his sentence is procedurally unreasonable because the district court failed to address an argument that Smith made with respect to reducing his Sentencing Guidelines range, and because the district court assertedly disregarded the Sentencing Guidelines and instead relied on the statutory maximum sentences for his crimes. He also argues that his sentence is substantively unreasonable because it is longer than the sentence received by an individual who played an identical role in a related bank robbery in the Eastern District of Tennessee. Because these arguments are without merit, we affirm.
07a0489p.06	2007/12/17	Certified v. Tenke Corp     Eastern District of Michigan at Detroit CLAY, Circuit Judge. Plaintiff-Appellant Certified Restoration Dry Cleaning Network, L.L.C. (“Plaintiff”) appeals the district court’s denial of its motion for preliminary injunction. Plaintiff’s underlying action seeks both monetary damages and injunctive relief for Defendant Tenke Corporation’s and Defendant Stephen Dubasik’s (collectively “Defendants”) breach of a noncompetition clause contained in the parties’ franchise agreement. For the reasons that follow, we REVERSE the district court’s order and REMAND the case to the district court with instructions to issue Plaintiff’s requested preliminary injunction.
07a0490p.06	2007/12/18	Gonter v. Hunt Valve Company     Northern District of Ohio at Youngstown MERRITT, Circuit Judge. This appeal, arising from a dispute between a law firm that represented qui tam plaintiffs and the defendant shipbuilders, raises the issue of whether the district court exceeded its discretion in awarding attorneys’ fees of $1,749,245 under the False Claims Act. The Plaintiff, a Cincinnati law firm, contends that the amount was unjustifiably low, while the Defendants urge this Court in a cross-appeal to find the lower court’s award excessive. Two additional issues are before us: first, the Defendants challenge the Plaintiff’s standing to bring this suit; and second, the Plaintiff argues that portions of the Defendants’ reply brief for the cross-appeal contravene Fed. R. App. P. 28.1(c)(4). The Plaintiff has standing to appeal the lower court’s decision, while the Plaintiff’s motion to strike portions of the reply brief is denied for failing to show prejudice. Turning to the substantive issues raised by both parties, we hold that, with the exception of the exclusion of fees related to the fee litigation, the district court’s calculation of attorneys’ fees falls within the broad discretion afforded under the statutory scheme. Consequently, with the exception of its ruling on the fee litigation issue, the district court’s decision is AFFIRMED.
07a0491p.06	2007/12/18	Beattie, et al v. Centurytel, Inc.     Eastern District of Michigan at Bay City R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellees brought this suit in federal district court, alleging that Defendant-Appellant CenturyTel, Inc. (“CenturyTel”) violated federal and state law by using deceptive billing practices to bill customers for WireWatch, a wire maintenance program. Plaintiffs-Appellees brought suit under the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., the Federal Communications Commission’s Truth-in-Billing Act, 47 C.F.R. § 64.2400 et seq., and the Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 et seq. Plaintiffs-Appellees moved the district court for class certification and for judgment on the pleadings on Count I of the Complaint, which alleged that CenturyTel engaged in unjust and unreasonable billing practices in violation of 47 U.S.C. § 201(b) and 47 C.F.R. § 64.2401. The district court certified Plaintiffs-Appellees’ claims and granted Plaintiffs-Appellees judgment on the pleadings as to Count I. CenturyTel appeals only the district court’s decision to certify the class. For the reasons discussed below, we AFFIRM the district court’s order to certify the Plaintiffs-Appellees’ class on its federal-law claims under Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”). We further remand the state-law claims to the district court to conduct a Rule 23 analysis.
07a0492p.06	2007/12/19	Shkulaku Purballori v. Mukasey     Immigration & Naturalization Service BOYCE F. MARTIN, JR., Circuit Judge. Figiri Shkulaku-Purballori petitions this Court for review of the decision by the Board of Immigration Appeals denying his request for asylum, or, in the alternative, Convention Against Torture relief or withholding of removal. Because we are without jurisdiction to review the denial of Shkulaku’s asylum application, we DISMISS that part of his petition, and because he cannot meet the high bar for qualification for withholding of removal, we AFFIRM the BIA’s decision denying his claim.
07a0493p.06	2007/12/19	Vincent v. Brewer Company     Southern District of Ohio at Cincinnati AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Antony Richardson (“Richardson”) appeals from his sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with “another felony offense.” For the reasons that follow, we AFFIRM.
07a0494p.06	2007/12/19	Pascual v. Mukasey     Immigration & Naturalization Service SUTTON, Circuit Judge. Hector Francisco-Pascual claims that he is eligible for asylum and contends that the Board of Immigration Appeals (BIA) erred in ruling to the contrary. Because Pascual has not established past persecution on account of his political beliefs and because at any rate he has no reasonable fear of future persecution based on changed country conditions, we affirm.
07a0495p.06	2007/12/20	USA v. Richardson     Middle District of Tennessee at Nashville AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Antony Richardson (“Richardson”) appeals from his sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with “another felony offense.” For the reasons that follow, we AFFIRM.
07a0496p.06	2007/12/20	USA v. Stout     Western District of Kentucky at Louisville KENNEDY, Circuit Judge. Defendant Michael Stout is charged with receipt and possession of sexually explicit visual depictions of minors under 18 U.S.C. §§ 2252A(a)(2)(B) & 2252A(b)(1) (receipt) and §§ 2252A(a)(5)(B) & 2252A(b)(2) (possession). Before trial, the government proffered evidence that Stout had pleaded guilty in state court to surreptitiously videotaping a 14- year old female neighbor while she showered. Stout moved in limine to suppress this prior bad acts evidence. The district court granted his motion finding that the unfair prejudicial effect of the evidence significantly outweighed its probative value. The government appealed pursuant to 18 U.S.C. § 3731. For the reasons that follow, we AFFIRM.
07a0497p.06	2007/12/20	Eidson v. TN Dept Child Serv     Eastern District of Tennessee at Greeneville McKEAGUE, Circuit Judge. This case arises from the temporary removal of plaintiffappellant Ronald Eidson’s minor daughters by Tennessee Child Protective Services and the Tennessee Department of Children’s Services after one of his daughters falsely accused him of sexual abuse. Full custody was restored to plaintiff eleven months later, after his daughter recanted her accusation. One year later, plaintiff filed suit, charging that various wrongful acts by child protective services workers had deprived him of liberty without due process. The district court dismissed the action as time-barred, rejecting plaintiff’s arguments that the accrual of his cause of action should be deemed to have been extended due to application of the continuing violation doctrine or, alternatively, abstention principles. The district court’s ruling is well-reasoned. For the reasons that follow, we affirm.
07a0498p.06	2007/12/20	USA v. Bolds     Western District of Tennessee at Memphis CLAY, Circuit Judge. Defendant Roxie Nicole Bolds (“Bolds”) challenges, on reasonableness grounds, the twenty-four-month sentence imposed by the district court following its revocation of Bolds’ four-year term of supervised release. Bolds argues that the district court committed procedural error by failing to adequately explain its upward departure from the four to ten month advisory sentencing range contained in the United States Sentencing Commission’s (“Sentencing Commission”) policy statements regarding supervised release revocation sentences. For the reasons that follow, we AFFIRM the sentence imposed by the district court.
07a0499p.06	2007/12/20	USA v. Lane     Western District of Tennessee at Memphis CLAY, Circuit Judge. Defendant Alandus T. Lane appeals his sentence of 68 months imprisonment, imposed after his conviction for wire fraud, arguing that the district court erroneously failed to calculate his advisory Guidelines sentence to credit nine months which he has already served pursuant to an undischarged sentence. According to Defendant, even though the district court correctly recognized the Guidelines as advisory and departed upward from the Guidelines at sentencing, the district court still committed reversible error under 18 U.S.C. § 3742(f) by calculating an incorrect advisory Guidelines sentence. Because the record reflects that Defendant’s sentence was not imposed “‘as a result of’ a misapplication of the Guidelines,” we AFFIRM the sentence of 68 months. Williams v. United States, 503 U.S. 193, 203 (1992) (quoting § 3742(f)(1)).
07b0014p.06	2007/12/21	In re: Johnson v.     U.S. Bankruptcy Court - Pikeville MARCIA PHILLIPS PARSONS, Bankruptcy Appellate Panel Judge. In this pre-BAPCPA preference action, the trustee appeals the bankruptcy court’s ruling that the lien on the debtor’s motor vehicle was protected from avoidance by the enabling loan exception, which excepts from avoidance certain security interests perfected within 20 days of the debtor’s possession of the collateral. Although the security interest in this case was not actually perfected until it was noted on the vehicle’s certificate of title a month after the debtor obtained possession, the court concluded that the security interest was deemed perfected under Kentucky law when the creditor tendered the appropriate documents and fees to the county clerk, an act which occurred 14 days after possession. Because the majority of the Panel concludes that perfection as defined by the Supreme Court in Fidelity Financial Services, Inc. v. Fink, 522 U.S. 211, 216, 118 S. Ct. 651 (1998), occurred more than 20 days after the debtor obtained possession, the bankruptcy court’s decision is reversed.

6th Cir. Published Decisions for Week of Dec. 10, 2007 (No.Ky Published)

Opinion	Short Title/District
07a0471p.06	Van Gorder v. Grand Trunk Western     Eastern District of Michigan at Detroit ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Elmer Van Gorder (“Van Gorder”) appeals the district court’s order granting summary judgment in favor of Defendant- Appellee Grand Trunk Western Railroad (“Grand Trunk”) in this negligence action filed pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Van Gorder claims that the district court erred in finding that there were no genuine issues of material fact regarding the reasonableness of Grand Trunk’s railcar inspections and that he had not established a prima facie negligence case. Finding no merit in Van Gorder’s contentions, we AFFIRM.
07a0472p.06	Arledge v. Franklin Cnty     Southern District of Ohio at Columbus BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Frances Arledge and Jay Mitchell brought suit alleging due process violations under the state custody theory, the state-created-danger theory, and the unconstitutional policy or custom theory, stemming from defendants’ placement of their son in a non-foster home where he was subsequently shot and killed. The district court granted summary judgment in favor of defendants, finding that plaintiffs failed to show the requisite culpability to maintain a claim under any of the alleged theories of liability. We hold that plaintiffs have not shown the requisite culpability, and AFFIRM the district court’s ruling.
07a0473p.06	Richardson, et al v. CIR     Commissioner of Internal Revenue SUTTON, Circuit Judge. This appeal arises from income tax deficiencies and fraud-penalty assessments levied by the IRS and upheld by the Tax Court. Because the Tax Court did not clearly err (1) in finding that Homer Richardson fraudulently created sham trusts and underreported the couple’s income and (2) in finding that Gloria Richardson failed to show that she was entitled to innocent-spouse relief, we affirm.
07a0474p.06	In re: Curry v.     Southern District of Ohio at Dayton RALPH B. GUY, JR., Circuit Judge. Tidewater Finance Company (Tidewater) appeals from the judgment of the Sixth Circuit Bankruptcy Appellate Panel affirming the bankruptcy court’s order denying Tidewater’s motion for relief from the automatic stay to allow for the sale of the debtor’s repossessed automobile and overruling Tidewater’s objection to confirmation of the debtor’s Chapter 13 plan based on its “cram down” treatment of the claim secured by that automobile. Whether a bankruptcy appeal comes before this court by way of the Bankruptcy Appellate Panel (BAP) or the district court, our review is of the bankruptcy court’s decision. Koenig Sporting Goods, Inc. v. Morse Rd. Co. (In re Koenig Sporting Goods, Inc.), 203 F.3d 986, 988 (6th Cir. 2000). Because the bankruptcy court’s decision was made on stipulated facts, this appeal presents only legal issues that we review de novo. Id. Tidewater argues that its prepetition repossession of the automobile, a 2000 Saturn SL, limited the debtor’s rights to those available under Ohio law and precluded the debtor from modifying Tidewater’s claim under 11 U.S.C. § 1322(b)(2). Tidewater relies on the same authority and reiterates the same legal arguments as it did both before the bankruptcy court and on appeal to the BAP. After careful review of the record, the applicable law, and the arguments presented on appeal, we find that the bankruptcy court did not err in confirming the plan and denying relief from the automatic stay. Further, because the reasons supporting this conclusion are so ably articulated by the BAP, we find that issuance of a full written opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the bankruptcy court’s order for the reasons set forth in Tidewater Finance Co. v. Curry (In re Curry), 347 B.R. 596 (6th Cir. BAP 2006).
07a0475p.06	USA v. Koubriti     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Karim Koubriti was the first defendant brought to trial as a terrorism suspect after September 11, 2001. His trial was a highly charged affair, and resulted in his conviction on two of four counts. Afterwards, it was discovered that the United States Attorney’s office in Detroit had committed numerous acts of misconduct in the prosecution of his case. The district court accordingly dismissed one count of his conviction without prejudice, and ordered a retrial on the second count for which he was convicted. Prior to the second trial, the government filed a superseding indictment replacing the count that had been ordered to be retried by the district court, albeit the new count involved some of the same conduct alleged in the first trial. Koubriti moved to dismiss, claiming that double jeopardy barred the new superseding indictment. The district court denied his motion, and this appeal followed. Because we find no double jeopardy is implicated by Koubriti’s retrial, we AFFIRM the district court’s decision.
07a0476p.06	USA v. Lalonde     Southern District of Ohio at Cincinnati CLAY, Circuit Judge. Defendant Paul M. Lalonde (“Lalonde”) appeals the conviction and 78-month sentence imposed by the district court following his plea of guilty to wire fraud, 18 U.S.C. § 1343, and income tax evasion, 26 U.S.C. § 7201. Lalonde challenges his conviction on the grounds of alleged violations of Federal Rules of Criminal Procedure 10 and 11. Lalonde appeals his sentence on the basis of the district court’s alleged misapplication of the United States Sentencing Guidelines (the “Guidelines”) and for unreasonableness. For the reasons that follow, we AFFIRM both the conviction and sentence imposed by the district court.
07a0477p.06	Peninsula Asset Mgmt v. Hankook Tire Co.,     Northern District of Ohio at Akron ROGERS, Circuit Judge. Plaintiffs, including a Grand Cayman Islands corporation, sued a South Korean corporation and a natural citizen of South Korea on breach of contract and fraud claims. Plaintiffs brought their suit in the United States District Court for the Northern District of Ohio on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a)(2). The district court granted summary judgment in favor of the defendants on all claims, and the plaintiffs appealed to this court. Because there are alien corporations on both sides of the controversy, this case lacks the complete diversity required for a federal court to exercise diversity jurisdiction under § 1332(a)(2). See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 580 n.2 (1999); Creaciones Con Idea, S.A. de C.V. v. Mashreqbank PSC, 232 F.3d 79, 82 (2d Cir. 2000); Impuls I.D. Internacional, S.L. v. Psion- Teklogix, Inc., 234 F. Supp. 2d 1267, 1272-74 (S.D. Fla. 2002). Contrary to the defendants’ argument, it makes no difference whether the plaintiff Grand Cayman Islands corporation has its principal place of business in the United States. It is well established that, under § 1332(a)(2), “even if a corporation organized under the laws of a foreign nation maintains its principal place of business in a State, and is considered a citizen of that State, diversity is nonetheless defeated if another alien party is present on the other side of the litigation.” Creaciones Con Idea, 232 F.3d at 82 (quoting Int’l Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989)). The jurisdiction in this case cannot, moreover, be predicated on § 1332(a)(3) even though that section has been interpreted as not requiring complete diversity. See, e.g., Dresser Indus., Inc. v. Underwriters at Lloyd’s of London, 106 F.3d 494, 498-99 (3d Cir. 1997). That section is inapplicable here because there is not a United States citizen on each side of the dispute. Therefore, the only applicable section is § 1332(a)(2), which requires complete diversity. Because complete diversity is lacking in this case, we reverse the judgment of the district court and remand the case for consideration of the need to dismiss for lack of subject matter jurisdiction.
07a0478p.06	Morgan v. ATF     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. Plaintiff Kerry Morgan appeals the district court’s grant of summary judgment in favor of the defendant, the Bureau of Alcohol, Tobacco and Firearms. Mr. Morgan, who deals in firearms from his residential premises in Redford Township, Michigan, applied in 2003 for a renewal of his federal firearms license. Based on an opinion of the Township’s legal counsel that Morgan’s firearms business violated Redford zoning regulations, ATF denied his renewal application. Morgan filed a petition for judicial review of ATF’s final denial pursuant to 18 U.S.C. § 923(f)(3), and the district court granted ATF’s motion for summary judgment. Because ATF properly relied on Redford Township’s interpretation of its own zoning laws in denying Morgan’s federal firearms license, and because Morgan has presented no genuine issue of material fact, we affirm the district court’s grant of summary judgment.
07a0479p.06	Triad Intl v. So Air Transp     Southern District of Ohio at Columbus ALAN E. NORRIS, Circuit Judge. The bankruptcy trustee of Southern Air Transport, Inc. (“SAT”), a debtor in a Chapter 11 proceeding, seeks to recover a $100,000 payment made to defendant Triad International Maintenance Corporation (“TIMCO”) as an avoidable preference under the Bankruptcy Code. 11 U.S.C. § 547(b). TIMCO advances two theories in response: that it was a fully secured creditor at the time of the payment; alternatively, that the payment represented a contemporaneous exchange for new value, an exception to the usual rule prohibiting transfers of interest in the debtor’s property made within 90 days of the filing of the bankruptcy petition. 11 U.S.C. § 547(c). The bankruptcy court ruled in favor of the trustee in bankruptcy, and the district court affirmed. Because we hold that the trustee in bankruptcy failed to meet his burden of proving the elements necessary to establish that the payment to TIMCO was preferential, and thus avoidable under 11 U.S.C. § 547(b), we REVERSE the judgment of the district court and REMAND the case to the bankruptcy court for further proceedings consistent with this opinion.
07a0480p.06	USA v. Vanhook     Western District of Tennessee at Memphis RONALD LEE GILMAN, Circuit Judge. Charles Vanhook pled guilty to one count of being a felon in possession of a firearm. The district court sentenced him to 180 months of imprisonment and three years of supervised release after concluding that this offense, together with Vanhook’s prior criminal history, caused him to be classified as an armed career criminal within the meaning of the Armed Career Criminal Act (ACCA). Vanhook argues on appeal that the district court erred in determining that he met the ACCA classification. Specifically, he contends that his prior state conviction for the facilitation of a burglary of a building does not qualify as a “violent felony” under the ACCA. He postulates that the facilitation of a burglary of a business does not present a serious potential risk of physical injury to another. Vanhook therefore asserts that his sentence is per se unreasonable under United States v. Booker, 543 U.S. 220 (2005), and should be vacated. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0481p.06	USA v. Watkins     Southern District of Ohio at Columbus RONALD LEE GILMAN, Circuit Judge. This case arises from Gary Watkins’s conviction on multiple counts of armed robbery, conspiracy, and firearms violations. On six different occasions, Watkins and/or his accomplices brandished firearms in the abduction of employees of different banks and cash-lending institutions from their homes in the Columbus, Ohio area. The men took the employees—and in some cases their families—to the employees’ respective places of employment and forced them to open safes and vaults. Watkins and his accomplices then fled with the cash they removed. After a jury found Watkins guilty on all counts, the district court sentenced him to 1,772 months in prison. Watkins raises three issues on appeal. First, he challenges his convictions for the robberies of the three cash-lending institutions on the ground that the government failed to prove that those robberies had a de minimis effect on interstate commerce as required by the Hobbs Act. He next challenges his sentence, arguing both that imprisonment for 1,772 months violates the Eighth Amendment and that the district court misinterpreted the Sentencing Guidelines. Finally, he argues that he received the ineffective assistance of counsel during sentencing. For the reasons set forth below, we AFFIRM the judgment of the district court and DENY Watkins’s ineffective-assistance of-counsel claim.
07a0482p.06	JPMorgan Chase Bank v. Winget     Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. Through a series of transactions between 1999 and 2002, JPMorgan Chase Bank and its predecessor served as agent for a number of lenders that had advanced credit to Venture Holding Company LLC, a company owned by Larry J. Winget and the Larry J. Winget Living Trust (hereafter collectively referred to as Winget). JPMorgan, on the basis of the various agreements between the parties, sought to inspect the financial records of two other companies owned by Winget after Venture filed for bankruptcy. The district court granted JPMorgan’s request for specific performance of the bank’s inspection rights, a decision that Winget has appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0483p.06	Fox v. Eagle Dist Co     Eastern District of Tennessee at Knoxville GRIFFIN, Circuit Judge. Plaintiff James Fox filed a civil complaint against defendant Eagle Distributing Company (“Eagle”), alleging that his former employer Eagle violated his rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the Tennessee Human Rights Act (“THRA”), TENN. CODE ANN. § 4-21-407, and the Tennessee Whistleblower Act (“TWA”), TENN. CODE ANN. § 4-21-407. Fox additionally raised a common law claim of retaliatory discharge. Fox now appeals from an order of the district court denying his Motion for Summary Judgment and granting Eagle’s Motion to Dismiss or for Summary Judgment. Specifically, Fox argues that the district court erred in granting summary judgment to Eagle on his retaliation claim under the ADEA. Finding Fox’s appeal to be without merit, we affirm the order of the district court. In so doing, we hold that Fox’s complaints to an Eagle customer about his relationship with Eagle were not protected activity under the ADEA.
07a0484p.06	Campbell v. PMI Food Equip     Southern District of Ohio at Dayton RONALD LEE GILMAN, Circuit Judge. PMI Food Equipment Group, Inc. closed its plant in Dayton, Ohio in 1995 and moved the operation to Piqua, Ohio after signing a tax-abatement agreement with the City of Piqua, Miami County, and the state of Ohio that resulted in favorable tax treatment for 10 years. In the process of closing its Dayton plant, PMI terminated all of the 66 hourly employees who worked there. The hourly workers and their spouses (collectively referred to as the “Workers”) sued PMI, Piqua, Miami County, the state of Ohio, and various other parties, asserting 33 causes of action arising under various state and federal laws in connection with the tax abatement, the closing of the Dayton plant, and PMI’s termination of its hourly workers. All but two of the Workers’ claims were dismissed by the district court, and the remaining two claims were resolved by the parties. The Workers timely filed this appeal. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0485p.06	Pfahler v. Natl Latex Products     Northern District of Ohio at Cleveland ROGERS, Circuit Judge. Plaintiffs are former employees of the National Latex Products Company (“NLP”) and former participants in and beneficiaries of the National Latex Products Company Employee Welfare Benefit Plan (“Plan”). They brought suit under § 502(a)(2) and § 502(a)(3) of the Employee Retirement Income Security Act (“ERISA”) against several parties after those parties allegedly breached fiduciary duties that they owed to the Plan. Among the parties named as defendants to the suit were NLP; Ross Gill, the president and Chief Executive Officer (“CEO”) of NLP; Glass & Associates, a business consultant to NLP; and Jay AuWerter, an agent for Glass & Associates. The district court in this case concluded that genuine issues of material fact existed as to whether all of the above defendants breached fiduciary duties to the Plan. The district court later concluded, however, that plaintiffs could not recover under either ERISA § 502(a)(2), which provides for derivative suits to remedy breaches of fiduciary duties, or ERISA § 502(a)(3), which allows for suits for “other appropriate equitable relief.” Accordingly, the court dismissed the claims under both provisions with prejudice. The parties raise numerous issues on appeal, but the primary issues before this court are whether the district court erred in determining that although (1) there are genuine issues of material fact with respect to whether NLP, Ross Gill, Glass & Associates, and AuWerter breached any fiduciary duties to the Plan and could consequently be held liable under §§ 502(a)(2) or (a)(3); (2) plaintiffs were barred from bringing suit under § 502(a)(2) because they sought to recover individually, rather than on behalf of the Plan; (3) plaintiffs could not bring an action under § 502(a)(3) because they sought money damages, as opposed to equitable relief; and (4) plaintiffs also could not bring suit under § 502(a)(3) because of their failure to comply with Federal Rule of Civil Procedure 23, which governs class action certification. We reverse because plaintiffs are permitted to seek relief from NLP, Ross Gill, Glass & Associates and AuWerter pursuant to § 502(a)(2). In light of this conclusion with respect to § 502(a)(2), plaintiffs are precluded from also obtaining relief under § 502(a)(3). Because of this resolution of the second issue, we need not address the third and fourth issues decided by the district court.

NONPUBLISHED INSURANCE LAW DECISION RE KY LAW

Baymon v. State Farm Ins Co
    Western District of Kentucky at Owensboro 07a0843n.06

MERRITT, Circuit Judge. Plaintiffs James and Lorrene Early Baymon obtained a homeowner’s insurance policy issued by defendant State Farm Insurance Company. After the Baymons lost their home in a fire, they filed a claim with State Farm. Due to material misrepresentations made to State Farm by the Baymons about their financial condition at the time of the fire and the suspicious origin of the fire, State Farm denied the claim and voided the policy. The Baymons filed suit against State Farm in Union Circuit Court in Morganfield, Kentucky, claiming breach of contract for failure to pay the loss claim, bad faith in denying the claim and violations of the Kentucky Unfair Claims Settlement Practices Act, KRS 304.12-230, and the Kentucky Consumer Protection Act, KRS 367.170. The case was removed by State Farm to federal by the district court. (J.A. at 35) The Baymons now appeal, alleging that genuine issues of material fact preclude summary judgment and that the district court erred as a matter of law on a variety of issues. For the reasons stated below, we do not regard the arguments presented by the Baymons as substantial or plausible, and we affirm the district court’s grant of summary judgment in favor of State Farm based on the Baymons’ false statements made to State Farm during the claims process which voided their policy.

NEWS: 2008 Sixth Circuit Judicial Conf. on May 7-10, 2008, Chattanooga, TN

The Conference will be held May 7-10, 2008 at the Marriott Chattanooga Convention Center.

The Judicial Conference of the Sixth Circuit is an annual gathering of all circuit, district, bankruptcy and magistrate judges of the Circuit. Every other year (on even-numbered years) members of the bar are invited to participate in the conference. Rule 205 of the Sixth Circuit Rules govern the attendance and membership requirements of these conferences.

If you have any questions concerning the Conference, please contact the Circuit Executive Office:

Phone: (513) 564-7200
E-mail: ca06-conf@ca6.uscourts.gov
Fax: (513) 564-7210

The Program on Thursday, May 8, will feature two plenary sessions; “Supreme Court Review” by Professor Erwin Chemerinsky and “The Federalization of Election Law.”

The program on Friday, May 9, will feature a plenary session on the 1964 trial of Jimmy Hoffa in Chattanooga in which he was convicted of fraud and jury tampering. This plenary session will be followed by breakout sessions on Appellate Review, Bankruptcy, Sentencing, and Employment Law.

Program sessions will begin at 8:30 A.M. on Thursday and Friday and conclude at 12:00 Noon and 12:30 P.M. respectively. The conference banquet will be held on Friday evening, May 9, and will feature remarks by Sixth Circuit Justice John Paul Stevens On Saturday morning, May 10, 2008, the program will conclude with Circuit and District Meetings commencing at 9:00 A.M. and adjourning at 11:00 A.M. The Circuit and District Meeting format will encourage the active participation by all lawyers and judges in the discussion of issues and problems in each court as well as other issues that may be identified throughout the Conference. Social and recreational activities are in the planning stage and will be fully explained in the registration materials.

Click HERE for more information.

CALENDARD: 2008 Court Session Calendar Posted On-Line

The United States Court of Appeals for the Sixth Circuit has posted the 2008 Court Session Calendar for the arguments to be held in Cincinnati, Ohio.  Click here.

6th Cir. Published Decisions for Week of Dec. 3, 2007 (No Published Kentucky Decisions)

Opinion	Short Title/District
07a0467p.06	Pepaj v. Mukasey     Immigration & Naturalization Service ALICE M. BATCHELDER, Circuit Judge. Petitioner Valentina Pepaj petitions for review of the order of the Board of Immigration Appeals (“BIA”), which dismissed her appeal of an Immigration Judge’s (“IJ’s”) order denying Ms. Pepaj’s motion to reopen her removal proceedings. Ms. Pepaj claims that she is entitled to a reopening of the proceedings. She asserts two alternative reasons: (1) because she was prejudiced in the earlier proceedings by her counsel’s ineffective assistance, or (2) because conditions in her country of nationality have changed. We conclude that Ms. Pepaj has not met the requirements for bringing a claim of ineffective assistance of counsel, and that we lack jurisdiction to review the BIA’s determination that she has not shown changed country conditions. We therefore deny the petition for review.
07a0468p.06	Marvin v. City of Taylor     Eastern District of Michigan at Detroit HAROLD A. ACKERMAN, District Judge. Plaintiff Frank L. Marvin alleges that three police officers of the City of Taylor, Michigan–Commander Don Helvey, Officer Matthew Minard, and Officer Jeffrey Shewchuk–used excessive force when arresting him on July 11, 2004. The District Court denied the Defendants’ summary judgment motion, which asserted qualified immunity to Marvin’s 42 U.S.C. § 1983 claim and governmental immunity to Marvin’s pendent state law assault and battery claims. For the following reasons we REVERSE the District Court’s denial of qualified immunity and governmental immunity on the grounds that the Defendants’ actions were objectively reasonable and therefore did not violate Marvin’s Fourth Amendment right to be free from unreasonable seizures.
07a0469p.06	Wagenknecht v. IRS     Northern District of Ohio at Cleveland VAN TATENHOVE, District Judge. On March 30, 2006, Carl R. Wagenknecht, Jr., (“Wagenknecht”) filed a complaint alleging a wrongful determination and levy on the part of the Internal Revenue Service (“IRS”) and seeking a redetermination of the decision. On May 30, 2006, the district court sua sponte dismissed the portion of the complaint challenging the income tax levies for lack of subject matter jurisdiction. Pursuant to I.R.C. § 6330(d)(1)(B), the court’s subsequent dismissal included a thirty (30) day period in which Wagenknecht could refile with the tax court the dismissed portion of the complaint. In addition, the district court, reaching the merits, sua sponte dismissed the remainder of the Complaint. Wagenknecht now appeals the district court’s Order. He essentially argues that the district court lacked the authority to sua sponte dismiss his complaint. For the reasons that follow, we will AFFIRM the portion of the dismissal that found there was no subject matter jurisdiction and REVERSE the portion of the dismissal which decided Wagenknecht’s claims on the merits.
07a0470p.06	USA v. Alexander     Western District of Michigan at Marquette SUTTON, Circuit Judge. Sheldon Alexander, a long-time resident of the Hannahville-Potawatomi Indian Community, located in the upper peninsula of Michigan, violated the terms of his supervised release through a series of alcohol-related incidents, and the district court imposed a new sentence. Alexander challenges one of his new conditions of supervised release, which requires him to live in Grand Rapids, Michigan, for one year. Because a district court may require a defendant to “reside in a specified place or area,” 18 U.S.C. § 3563(b)(13), and because the district court did not abuse its discretion in concluding that this condition “involves no greater deprivation of liberty than is reasonably necessary,” id. § 3583(d)(2), we affirm.

6th Cir. Published Decisions for Week of Nov. 26, 2007

Opinion

Short Title/District

07a0466p.06

Zhang v. Gonzales     Immigration & Naturalization Service ALICE M. BATCHELDER, Circuit Judge. At issue in this case is whether an adjustment of status constitutes an “admission” for purposes of 8 U.S.C. § 1227(a)(2)(A)(i), as the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) held. Finding that it does not, we GRANT the petition for review, VACATE the removal order, and REMAND for a new hearing.